DATE: 20030113

DOCKET: C35912

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and– MICHAEL LEE SHADY (Appellant)

BEFORE: WEILER, ABELLA and CHARRON JJ.A.

COUNSEL: J. Gleitman, for the appellant Mary-Ellen Hurman, for the respondent

HEARD: January 9, 2003

RELEASED ORALLY: January 9, 2003

The appellant, Michael Lee Shady, appeals against the conviction imposed by Justice Thomas G. Zuber of the Superior Court of Justice, sitting with a jury, dated November 17, 2000.

E N D O R S E M E N T

[1] The appellant Shady was tried before Zuber J. with a jury. He was convicted of one count of sexual assault and acquitted of one count of break and enter with intent to commit an indictable offence, namely sexual assault. He was sentenced to 90 days intermittent custody with one year probation. He appeals against his conviction only.

[2] All of the appellant’s submissions relate to the trial judge’s charge to the jury. A brief outline of the evidence will therefore suffice to put the issues raised in this appeal in context.

[3] At trial, the 15 year old complainant testified that the appellant sexually assaulted her after a party that she and her brother held at their residence on July 18, 1999, while their parents were absent. According to the complainant, she was asleep in her parents’ bedroom after the party when she was awakened by the appellant who had his hand over her mouth and his penis exposed. He attempted to pull her head towards his penis but she resisted. She said the appellant then had forcible intercourse with her. After attempting to calm the appellant down by smoking a cigarette in the backyard, the complainant alleges that she was again sexually assaulted by the appellant, this time in her bedroom, when they entered the home again.

[4] According to the appellant, he had been involved in an ongoing sexual relationship with the complainant prior to the events. On the night of the party, the appellant testified that the complainant invited him to return to her house for a sexual liaison after driving his friends home. When he returned, to his surprise he found the back door locked. He, therefore, knocked on the window of the complainant’s bedroom and she allowed him into the house. The two proceeded to the complainant’s parents’ bedroom where they engaged in consensual sexual foreplay. They then went out for a cigarette and returned to the complainant’s bedroom where the appellant asked the complainant to perform oral sex on him. After she refused, the appellant performed oral sex on the complainant and engaged in what he said was consensual sexual intercourse.

[5] The appellant advances four grounds of appeal with which we propose to deal seriatim.

Did the trial judge err in not leaving the defence of honest but mistaken belief in consent with the jury?

[6] At the end of the trial the trial judge found that there was no air of reality to the defence of honest but mistaken belief in consent and the defence counsel was silent.

[7] After the jury had been charged, no objection was taken to the charge.

[8] During its deliberations the jury returned with questions relating to the incident of oral sex in the complainant’s bedroom. The appellant submits that because the jury’s questions focussed on the evidence related to oral sex, that at that point it was incumbent on the trial judge to charge the jury on the defence of honest but mistaken belief in consent.

[9] Whether or not the defence of honest belief in consent should be put to the jury depends on whether there is an air of reality to the defence arising from the evidence. We agree with the trial judge that there was no air of reality to this defence. Further, we are of the opinion that, although the jury focussed on this particular aspect of the evidence in its questions, this does not mean that they have discounted the rest of the evidence relating to the charge. In any event, even considering the evidence relating to oral sex alone the defence of honest but mistaken belief in consent does not arise.

Did the trial judge fail to charge the jury sufficiently on the issue of consent?

[10] Counsel for the appellant acknowledged in her submission that there was no error insofar as what the trial judge said about consent. The alleged error relates solely to the previous ground of appeal. Hence, this ground must also fail.

Were the verdicts inconsistent?

[11] In his precharge conference with counsel, the trial judge stated that it was possible that the verdicts might be different with respect to each count. Counsel did not disagree.

[12] We see nothing inconsistent about the jury reaching a verdict that reflects their unwillingness to conclude that the appellant committed the offence of break and enter with intent while convicting him for sexual assault. The elements of these offences are entirely different.

Did the trial judge err in his charge on reasonable doubt?

[13] We see no merit to the submission of the appellant that the trial judge erred in charging the jury on reasonable doubt.

[14] Accordingly, the appeal from conviction is dismissed.

Signed: “Karen M. Weiler J.A.”

“R. S. Abella J.A.”

“Louise Charron J.A.”